Fertility down from 3.0 to 1.9: Supreme Court sends 2003 two-child election bar ruling to a larger bench
Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe say laws penalising a third child have lost their foundation, keep a Maharashtra sarpanch in office and ask for a larger bench to revisit Javed.
The Supreme Court on 4 November 2026 said that laws punishing people for having more than two children have lost their relevance. It directed the Registry to place the judgment before the Chief Justice of India so that a larger bench can reconsider the Court’s 2003 ruling in Javed v. State of Haryana, which upheld such laws.
“laws that penalise having more than two children have lost their relevance” (para 3)
The judgment, marked reportable, was passed by a bench of Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe. It arose from the appeal of a woman whose election as Sarpanch of a Maharashtra village was set aside because she had a third child.
The bench did not decide whether she was rightly disqualified. It stayed the proceedings and referred the Javed question upwards. Its earlier stay on the High Court judgment continues, so she remains Sarpanch until the appeal is disposed of.
A sarpanch with a third child
Mangala Bhimrao Ingle was elected Sarpanch of Kakoda Gram Panchayat in the 2022 elections. Her election was set aside on the ground that she was disqualified under Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959, because she had more than two children.
The record showed that she gave birth to a third child in 2014. The bench noted that her only argument on the facts was that the third child was not conclusively proved, because the place of issue on the birth certificate was allegedly not valid.
The bench said its concern lay elsewhere. When it issued notice, it was not examining whether the High Court had applied the law correctly. It wanted to know whether such laws stay relevant when the very foundation for them has changed.
What Javed decided in 2003
Javed examined the Haryana Panchayati Raj Act, 1994 and upheld the disqualification of persons with more than two living children from contesting or holding panchayat office. The Court tested the law under Article 14 with the twin test of intelligible differentia and rational connection to the object, and found no violation.
The object, as the present bench reads it, rested on the perception of a population boom and its damage to the economy. Javed pointed to China’s position in 2000 and to five-year plans that had failed to shift a population growth rate stuck at 33 per thousand since 1979.
It also relied on the National Population Policy, 2000, which aimed to bring the Total Fertility Rate to replacement levels by 2010. The present bench said the assumptions in Javed no longer hold and have been shown to be false.
Fertility from 3.0 to 1.9
Since 2003, the bench said, India’s Total Fertility Rate has fallen from about 3.0 to 1.9, on the Sample Registration System Statistical Report 2024. A rate of 2.1 is the replacement level, at which one generation exactly replaces itself, so India is now below it.
The bench explained why it preferred this measure to the crude birth rate. Between 1971 and 2024 the crude birth rate fell from 36.9 to 18.3 births per 1,000 people, roughly halving. The Total Fertility Rate fell from 5.2 to 1.9, by almost two-thirds.
The gap exists because India’s population is still young, with a large share in the childbearing ages. That keeps births high even though each woman has fewer children. The Rate strips out that age-structure effect.
The National Family Health Survey-6 puts the 2024 rate at about 2.0. The World Bank places population growth at about 0.887 per cent in 2025, against roughly 1.6 per cent around 2005.
The bench called this an extraordinary phenomenon that has gone unnoticed because the country is so large. Total population has not begun to fall, it said, because people born in earlier high-fertility decades are now in their reproductive and working years.
An ageing India, and a lesson from China
The share of people aged 60 and above has risen from about 8.3 per cent in 2014 to 9.7 per cent in 2024, the bench recorded. Government projections put it near 15 per cent by 2036. A UNFPA report projects 20.8 per cent by 2050, up from 10.5 per cent in 2022.
It quoted the Economic Survey 2025-26, which expects the working-age group (15 to 59) to exceed 98 crore over the next 10 years and to peak near 65 per cent of the population around 2030. The same passage warns of strain on labour markets and social support systems as the population ages.
The bench said it would be dangerously complacent to ignore these trends because India already has a large population. It listed lower labour-force participation, higher old-age dependency and pressure on public finances as possible consequences.
China, it said, was the example Javed had held up as a success. China abandoned its one-child policy in 2015, moved to incentives for two children, and in 2021 allowed three, with support for childcare, education and maternity protection. The hoped-for revival in births has, by and large, not followed.
Japan, the bench added, still carries high public debt and heavy spending on health and long-term care for an ageing population.
“We cannot ride into the future on a horse that is dead.” (para 27)
The National Population Policy target that Javed relied on, the bench noted, has not just been met but passed. It said the concern today is an ageing population and a shrinking share of working-age people, and that society and courts should think about encouraging healthy population growth.
When a law outlives its reason
The validity of the Maharashtra provision was not challenged, so the bench said it could not rule on it directly. It could still observe that a law once reasonable may lose its rationale over time and may deserve reconsideration.
Relying on Yash Developers v. Harihar Krupa Co-operative Housing Society, 2024 INSC 559, the bench said constitutional courts see how statutes work in practice. It treated adapting to change as one of the four aspects of justice. Failure to use power to adapt, it said, is itself an abuse of power.
This case was different, the bench said. The foundation of the legislation had crumbled and its object had become counterproductive. A court cannot direct the legislature to repeal or amend a law, but it can examine whether the law’s continued operation is still constitutionally sustainable.
For the test, it turned to what it called the doctrine of temporal reasonableness. In Malpe Vishwanath Acharya v. State of Maharashtra (1998), the Court recognised that a statute justified when enacted may become arbitrary and unreasonable with time.
Satyawati Sharma v. Union of India (2008) went further. A law reasonable when made may become arbitrary and violate equality if circumstances change, and a court may strike it down even after an earlier challenge failed, if the rationale of the classification has gone. A three-judge bench reaffirmed this in State of Maharashtra v. Super Max International (2009).
The bench also set out the limits. It cited Justice H.R. Khanna’s concurring opinion in Maganlal Chhaganlal v. Municipal Corporation of Greater Bombay (1974), which warned against both fossilised law and hasty new principles. Fundamental changes in legislative policy, it said, ordinarily remain with the legislature.
A Constitution Bench in Union of India v. Raghubir Singh (1989) had said the doctrine of binding precedent is limited by the need to readjust to a changing society, the bench recalled.
“the underlying basis of these judgments no longer holds ground” (para 46)
The bench said it was not testing the validity of Javed, Rajbala v. State of Haryana (2016) or the Maharashtra provision. It could, however, declare that the basis of those judgments had gone.
It drew on the dissent of Justice S.B. Sinha in State of Punjab v. Devans Modern Breweries (2004). A decision never overruled may cease to be law owing to changed conditions. The bench said the second situation is the one before it: a case that was law when decided but has lost that character.
From Javed to Rajbala
The provisions examined in Javed were repealed by an Amendment Act of 2006, the bench noted. The reasoning lived on. It became a precedent for sustaining further limits on eligibility to contest local body elections.
It also shaped the approach to the Haryana Panchayati Raj (Amendment) Act, 2015. That Act added minimum educational qualifications, a bar on those with dues to specified cooperative institutions or unpaid electricity bills, and a requirement of a functional toilet at the candidate’s home.
Rajbala v. State of Haryana (2016) upheld those qualifications and relied expressly on Javed. On the data placed before it, the Court itself accepted that about 68 per cent of Scheduled Caste women and 41 per cent of Scheduled Caste men would be ineligible. The National Commission for Scheduled Castes later recorded its concerns.
The Constitution, the bench said, does not assume that wisdom, integrity or commitment to public welfare belong only to urban residents, as Javed held, or only to the formally educated, as Rajbala held.
In Sukanya Shantha v. Union of India, 2024 INSC 753, a three-judge bench questioned the reasoning in Rajbala and recognised indirect discrimination against Scheduled Castes. It did not reconsider Javed or Rajbala, the bench noted.
Women, representation and reproductive choice
The bench said the link between population control and the right to contest elections deserves reconsideration. It quoted Dr Ambedkar’s view that the right of representation and the right to hold office are the two most important rights that make up citizenship.
It said disqualifying people for a third child treats elected office as a tool of population policy. That risks the stereotype that village-level representatives carry a special responsibility for population growth. The causes of higher fertility, it said, are far more complex.
The bench traced such laws to the K. Karunakaran Committee, which had recommended disqualification for those with more than two children from the Panchayat to Parliament. Several States adopted it for panchayats. No such law was made at the Centre.
A Constitution (Seventy Ninth Amendment) Bill, 1992 was introduced in the Rajya Sabha, but the parties reached no consensus. A draft Cabinet note of 2007 proposed withdrawing it, and no decision was taken.
The bench called the practice of imposing such limits only on panchayat-level leaders full of prejudice and preconceived notions. It cited People’s Union for Civil Liberties v. Union of India (2003) for the view that devotion to duty is not the monopoly of the well-educated.
Javed had brushed aside the effect on women on the ground that men and women were equally disqualified. The present bench said that does not match social reality.
A 2009 study sponsored by the Ministry of Panchayati Raj, covering Rajasthan, Madhya Pradesh and Gujarat, found that the norm weakened women in a patriarchal setting. Since husbands often drive reproductive decisions, a woman may be disqualified for a choice she did not control. The study recorded forced abortions, desertion of pregnant wives and denial of paternity.
The bench added that son preference shapes decisions across income and education levels, which calls for broader policy answers rather than blame on any one section of society.
On Article 21, it relied on Suchita Srivastava v. Chandigarh Administration (2009) and X v. Principal Secretary, Health and Family Welfare Department (2023) for the right to make reproductive choices. The State cannot achieve indirectly, through civil or political penalties, what it cannot ordinarily compel directly.
Reproductive autonomy is not wholly immune from regulation, the bench said, but any limit must be tested continuously for reasonableness. A disqualification on the birth of a third child forces a choice between reproductive autonomy and taking part in democratic governance.
Its conclusion was that, even if such a law was valid when made, it has become invalid because the foundation on which it rested has changed.
Order
The Court granted leave. It referred the matter to a larger bench for reconsideration of the ratio in Javed v. State of Haryana, and directed the Registry to place the judgment and order before the Chief Justice of India to constitute an appropriate bench.
The interim order staying the High Court judgment continues until the civil appeal is disposed of, so the appellant stays in office as Sarpanch of Kakoda Gram Panchayat. The bench recorded its thanks to Ms. Rukhmini Bobde, the Amicus Curiae.